Cross examination

A VERY IMPORTANT MATTER

Early on in my exploration of the papers of David Maxwell Fyfe I considered what I should do with such a dramatic bequest.

Notes, speeches and other documents look like a book.

However, letters only look like a book. They are, in fact, a form of conversation. This conversation is not just a series of monologue responses between a couple. In the case of a loving couple it is the conversation of the mind that exists even when they are separated. This became clear to me as I organised the letters from Nuremberg chronologically as they were written.

This conversation was taking place against a backdrop of extraordinary events, but the events were never more real than the presence of the loved one. To me this suggested a dramatisation, which considered the events through the intimate eyes.

To create Making History I traced the principal themes of the letters, paring down to two: the progress of the tribunal, and the pathway of their relationship through the year as it impacted on the case.

I cannot think of a better way to illustrate the impact of Maxwell Fyfe’s cross-examination of Hermann Goering than the reproduction of the scene from Making History. This weaves the correspondence between David and Sylvia Maxwell Fyfe with extracts of cross-examination, first Maxwell Fyfe with Kesselring, then Robert Jackson with Goering and finally Goering and Maxwell Fyfe.

Observing are two journalists, Genet from the New Yorker and Guy Ramsay from the Daily Mail. Genet was the pen name of Janet Flanner, an American writer and journalist who served as the Paris correspondent of The New Yorker magazine from 1925 until she retired in 1975.

There are a number of explanations offered for Jackson’s failure to get to grips with Goering. Having sat on the US Supreme Court for some time, he had not had the practice that his fellow prosecutors benefited from. And there were issues regarding his health.

As this extract illustrates, however, the US case sought to prove conspiracy, and Goering felt comfortable that conspiracy was a very vague term, and that he would not describe the ruling hierarchy of Germany as a conspiracy, but rather a form of government.

On the other hand Maxwell Fyfe’s cross-examination about the shootings of the escaped airmen (the basis for the film The Great Escape) show that Goering did consider this to be a ‘serious matter.’ Goering was head of the German Air force (the Luftwaffe). He would have been appalled and furious if his young pilots had been shot in cold blood while escaping. Prisoners of war were expected to attempt to escape.

Goering is therefore trying to prove that he did not know about the incident. Maxwell Fyfe courteously proves that he did in fact know, and had fallen short of standards that he would have acknowledged and followed before the outbreak of war. Part of the success of Fyfe’s cross-examination lay in reminding the Nazis that they had failed themselves.

SCENE

DMF I had my first bit of cross-examination to-day – Goering’s witness, Field Marshal Kesselring. You remember

Civitella? You remember what was done with Civitella by your forces, do you not?

KESSELRING: At the moment, no.

DMF Well, just let me remind you what was done at Civitella - that was on the 18th of June, one day after your order.

"Two German soldiers were killed and a third wounded in a fight with partisans in the village of Civitella. Fearing

reprisals, the inhabitants evacuated the village, but when the Germans discovered this, punitive action was

postponed. On June 29"

- that, you will remember, Witness, was 9 days after your proclamation to reinforce your order

"when the local inhabitants were returned and when feeling secure once more, the Germans carried out a well-

organised reprisal, combing the neighbourhood. Innocent inhabitants were often shot on sight. During that day

212 men, women, and children in the immediate district were killed. Some of the dead women were found

completely naked. In the course of investigations, a nominal roll of the dead has been compiled and is complete

with the exception of a few names whose bodies could not be identified. Ages of the dead ranged from 1 year to

84 years. Approximately one hundred houses were destroyed by fire. Some of the victims were burned alive in

their homes."

That is the report of the United Nations War Crimes Commission on the incident. Now, Witness, do you really think

that military necessity commands the killing of babies of 1 and people of 84?

Kesselring : No.

DMF (from the prosecutors table) Everyone was frightfully nice about it. In my own view - after being unnecessarily

het up about it, afraid I should not come off - I did rather knock Hell out of a conceited German Marshal. I do not

suppose it will get much press, as the space will be devoted to Goering going into the box.

Goering (at the defendants stand) Conspiracy may be variously interpreted. Conspiracies naturally never took place in the

sense that men secretly came together and discussed extensive plans in darkness and seclusion. As to

conspiracy in the sense that the Fuehrer had comprehensive conferences and as a result of these conferences

decided upon joint undertakings, one can only talk of conspiracy here to the extent, and I beg of you again not to

misunderstand me - that this took place between the Fuehrer and me until, say, 1941.

DMF Actually he, Goering, was extremely clever - very calm, factual and a little dull. Jackson is going to start his

cross-examination.

Genet Genet for the New Yorker…by wireless… On a recent visit to Nuremberg, a noted lawyer optimistically wrote to a

colleague, “I expect you feel, as I do, that the first really great and dramatic moment of this trial will come when

Goering is cross-examined by the American prosecutor Jackson. It will be a duel to the death between the

representative of all that is worthwhile in civilisation and the last important surviving protagonist of all that was

evil.”

Jackson (at the stand) I can only repeat my question, which I submit you have not answered. Did you at that time see any

military necessary for an attack by Germany on Soviet Russia?

Blackout

Jackson I have understood from your testimony - and I think you can answer this "yes" or "no," and I would greatly

appreciate it if you would - I have understood from your testimony that you were opposed, and told the Fuehrer

that you were opposed, to an attack upon Russia at that time. Am I right or wrong?

DMF The oddity about his attempts so far is that they have no form and no follow up, but a wealth of carefully prepared

material.

Jackson If you would answer three or four questions for me "yes" or "no," then I would be quite willing to let you give your

entire version of this thing.

Genet In a sense the whole result of the trial depends on the outcome of this duel, and whilst the world could see the

importance of the decisive battles fought out between the armed forces arrayed against each other, I hope they

may see the immense importance of the decisive battle of ideas to be fought out that day in the courtroom. It will

colour this trial from now on and it may well colour the thoughts of men for generations to come.

DMF Curiously enough for the effete Old Country I get the impression that I have been brought up in a much harder and

tougher school. One up for Uncle Starkey!

Jackson I am now moving that this witness be instructed that he must answer my questions "yes" or "no" if they permit an

answer, and that the explanation be brought out by his counsel in a fashion that will permit us to make objections,

if they are irrelevant, and to obtain rulings of the Tribunal, so that the Tribunal can discharge its functions of ruling

out irrelevant issues and statements of any kind whatsoever. We must not let the Trial degenerate into a bickering

contest between counsel and the witness.

Genet The future thoughts of democratic men will have to take their hue from other, rosier episodes in the trial, for in the